Petitioned for my now-dead brother (F4); can his widow and children still immigrate?

Unfortunately, spouse and children who are derivatives lose their ability to immigrate after the primary beneficiary dies.

Question

I filed an I-130 visa petition to start the process of getting my brother, his wife, and their two children green cards, but my brother died. Can his widow and children still get immigrant visas?

Answer

If your question is can they still get immigrant visas based on the I-130 visa petition you filed for your brother, the answer is unfortunately no.

Your brother’s wife and their children were what is called “derivatives” of your brother. That means that their ability to get immigrant visas derived (came from) the I-130 you filed for your brother; the wife and children had no independent basis for getting immigrant visas.

Once your brother died, his derivatives—his wife and children—lost their ability to immigrate through him.

Exploring Alternatives for Widow and Children to Immigrate to U.S.

Of course, your brother’s widow and the children might still be able to immigrate to the U.S. if they qualify for a green card some other way. There is no provision in U.S. immigration law that allows you to petition for a sister-in-law, but maybe your brother’s wife has another relative in the U.S. who can petition for her.

Most likely this would be one of her parents. If she has a parent who is a lawful permanent resident of the U.S. (green card holder), the parent can now file an I-130 petition for her, as long as she remains unmarried. (Permanent resident parents can NOT file for children who are married.)

If she has a parent who is a U.S. citizen, the parent can file an I-130 for her whether she remains unmarried or not, although under current conditions she will get her visa more quickly if she remains unmarried.

If your brother and his wife got married very young, such that she is still under 21, immigration through a parent will be much faster. Because she is now unmarried and under 21, she is considered a “child” who is entitled to “immediate relative” status (if the parent is a U.S. citizen) or “F-2A” status (if the parent is a lawful permanent resident). There is no visa wait for immediate relatives and under current conditions, only a short wait for F-2A visas. (See “How Long Is the Wait for Your Priority Date to Become Current?”)

In all but one of the cases described above, the children can immigrate with their mother as “derivatives” — as long as they can still be considered “children” under U.S. immigration law. Generally, a “child” has to be under 21 and unmarried. There is a law called the Child Status Protection Act that allows some children who turn 21 before their immigrant visas are approved to retain “child” status and the ability to immigrate as derivatives. (See “How the CSPA Helps Family-Based Preference Relatives and Derivative Beneficiaries.”)

The exception to the children’s ability to immigrate is if your brother’s wife is still under 21 and unmarried and her U.S. citizen parent can petition for her as an “immediate relative” child herself. The children can’t tag along on their mother’s I-130, since the law doesn’t allow for derivatives of immediate relatives. The children will have to wait for the mother to get lawful permanent residence in the U.S. so that she can file an I-130 for them. (Currently the wait for the children’s visa would not be very long.) If the family does not want to be separated, they could wait for the mother to turn 21. The U.S. citizen parent would file an I-130 for the mother in the “F-1” category, which allows derivatives to immigrate at the same time. However, currently the wait for a visa in that category is many years.

If someone else petitions for your brother’s wife and children, they will unfortunately have to go to the back of the line and wait for their visas all over again (unless they are in the immediate relative category). There is no provision in U.S. immigration law that allows them to retain the “priority date” from the I-130 you filed for your brother.